' MUHAMMAD AZAM KHAN, C.J.---The Azad Jammu and Kashmir High Court dismissed Writ Petition No,2113 of 2012, filed by the petitioner, appellant herein, through the impugned judgment on 6-6- 2013.
2. The appellant filed a writ petition in the High Court alleging therein that the petitioner-company applied for issuance of the license to run Speice FM-107 Radio Channel from Mirpur. The application moved to the Additional Secretary Home Department was forwarded to the AJ&K, Council Secretariat on 27-8-2012. He also approached the Deputy Commissioner Mirpur for issuance of the license on the ground that in similar circumstances permission and NOCs have been granted to the others for running the Radio Channel at other districts. The Deputy Commissioner advised the petitioner to approach Pakistan Electronic Media Regulatory Authority (to be referred hereinafter as PEMRA) for radio transmission license through letter dated 4-9-2011. The appellant addressed various, applications to certain Departments but the needful was not done. The petitioner, appellant herein, resorted to filed writ petition wherein he requested for a direction that the respondents shall arrange for the issuance of the license for broadcasting Spice FM 107 Radio Channel. It was also prayed that respondent No,5, Home Department of Azad Jammu and Kashmir, be directed to issue the license in accordance with the notification issued by the Home Department on 17-4-2003. After necessary proceedings, a learned single Judge in the High Court dismissed the writ petition.
3. Mr. Sadaqat Hussain Raja, advocate, counsel for the appellant, submitted that the judgment of the High Court is against law and the record. The High Court has dismissed the writ petition on the ground that under Section 30-A of the PEMRA Ordinance, 2002, an appeal lies to the High Court within thirty days of the receipt of the said decision. In presence of alternate remedy the writ petition is not maintainable. The learned counsel submitted that PEMRA Ordinance was adopted by the AJ&K Council on 19-7-2005 and Section 30-A was inserted in the said Ordinance through an amendment brought in the year 2007. Section 30-A is not a part of PEMRA Ordinance adopted by the AJ&K Council, therefore, the findings recorded by the High Court that the remedy by way of Section 30-A is an alternate remedy, is not correct appreciation of law. The learned counsel also argued that in the Council Adaptation Act, 2005, the "authority" is defined as the authority constituted under Section 2(b) of PEMRA Ordinance, 2002. The authority has no office in Azad Jammu and Kashmir. It has not made any arrangement for establishment of its set up in Azad Jammu and Kashmir, therefore, it cannot issue license. The learned counsel relied upon the case reported as (2002 SCR 507(sic)).
' There is no such case at page No,507 of the law journal, as cited by the learned counsel.
4. While controverting the arguments of the counsel for the appellant, Ch. Shaukat Aziz, the learned Additional Advocate-General, defended the judgment of the High Court and argued that under Rule 23 of PEMRA Rules, 2002, an appeal lies to the authority. The appellant applied for issuance of license to the PEMRA. He was informed that PEMRA issues commercial FM radio licenses through open and transparent bidding process. The license cannot be issued on simple application nor can the application be entertained. Moreover, under Rule 23 of the PEMRA Rules an appeal from the refusal lies to the authority. The appellant has not filed any appeal against the said order. In presence of this alternate remedy, writ petition is not maintainable.
5. We have heard the learned counsel for the parties and perused the record.
6. The appellant moved an application to the Home Department, Azad Government of the State of Jammu and Kashmir, for issuance of license to operate FM Radio Channel Spice FM-107. The application A was forwarded to the AJ&K Council on 6-8-2012. The AJ&K Council forwarded the same to the Chairman PEMRA on 27-8-2012 for further actions. The General-Manager (Licensing)
PEMRA replied to the Council on 12-9-2012 informing therein that PEMRA issues commercial FM licenses through open and transparent bidding process in phase-wise program under Section 19 of PEMRA Ordinance, 2002 as amended by PEMRA (Amendment) Act, 2007. It was apprised that the applications for issuance of license cannot be entertained at this stage. The letter is reproduced as under:- "Pakistan Electronic Media Regulatory Authority Headquarters Islamabad.
F. 10-4(299) Cen 12/54 Dated: 12th Sept. 2012 ' Subject: ISSUANCE OF LICENSE TO OPERATE FM RADIO-107 ' Reference: AJ&K Council letter No, Law-1/1/2005 AJKC dated 27-10-2012 on the subject.
2, It is informed that PEMRA issues commercial FM Radio licenses through open and transparent bidding process in phase wise program under Section 19 of PEMRA Ordinance, 2002 as amended by the PEMRA (Amendment) Act, 2007.
3. The Authority has already approved FM Radio Licensing Phase-X for the whole country and Azad Jammu and Kashmir. The case has been forwarded to Frequency Allocation Board (FAB) for confirmation of the availability of frequency for the next phase of bidding i,e, Phase X. Applications will be invited through national and local newspaper in the future; as and when the frequencies are cleared by FAB. Secondly, the PEMRA law is sub-judice in the Supreme Court of AJ&K.
' Forgoing in view the application of Mr. Tanvir Ahmed, CEO of Messrs Cutting Edge (Pvt.) Ltd. Mirpur AJ&K for issuance of FM-Radio License cannot be entertained at this stage. Therefore, company, may be advised to apply as and when PEMRA invites the applications.
' This issues with approval of the competent authority.
(General Manager)
Licensing"
7. The Home Department, Azad Government of the State of Jammu and Kashmir, advised the appellant through letter dated 2-10-2012 to apply to PEMRA under law. It is manifest from the letter addressed to General Manager (Licensing) PEMRA to the Section Officer AJ&K Council that PEMRA issues licenses through open and transparent bidding and phase X for the whole country and Azad Jammu and Kashmir has been completed. The case has been sent to Frequency Allocation Board for confirmation of the availability of frequency for the next phase of bidding i,e, Phase X applications will be called. Under Rule 23 of the PEMRA Rules,, 2002, any order passed by the Officer of the Authority is appealable before the- authority. Rule 23 is being reproduced hereunder:- "23. Appeals.---A person, aggrieved by an order of an officer of the authority, acting under the delegated powers of the Authority, may, within thirty days of issuance of the order, appeal to the Authority and the Authority shall decide the matter within forty five days of the submission of the appeal."
A plain reading of the said Rule shows that any person aggrieved from the order passed by the officer of PEMRA may file an appeal within thirty days of issuance of such order. The order was communicated to the appellant within time. He failed to file any appeal from the said order. The remedy by way of Rule 23 is an efficacious remedy. It is well settled law that in the presence of alternate and efficacious remedy, writ petition is not maintainable. Every alternate remedy is no bar to the filing of writ petition but where alternate remedy is equally efficacious, writ petition is not maintainable. It has been observed in the case reported as Muhammad Munir v. Chairman/ Chairperson AJ&K Board of Intermediate and Secondary Education and 3 others 2006 SCR 29 as under:-- ....Without availing remedy under the statute particularly where right of appeal is provided, the ,filing of writ petition in the High Court cannot be justified. If the appellant would have avail right of appeal before the Board and the same would have remained unattended for indefinite period only then he could have availed writ jurisdiction of the High Court seeking direction to, decide his appeal at earliest. As the remedy of writ. Was availed without availing the alternate remedy of appeal before the Board, therefore, no error was committed by the learned Chief Justice of the High Court while dismissing his writ petition."
8. It was vehemently argued by the counsel for the appellant, Mr. Sadaqat Hussain Raja, advocate, that it is the duty of the Department of Interior, Azad Government of the State of Jammu and Kashmir, in the light of notification issued on 17-4-2003 to issue license in the light of said rules.- We have perused the said notification. The same is reproduced herein-below:-- {{URDU TEXT}} ' A perusal of the notification shows that the same has been issued to regulate the operation of cable TV network, close-circuit TV, Direct TV Transmission and Multi-Channel distribution system till the formal legislation is promulgated. The said notification is not relevant for the purpose of issuance of FM 107 license, which can only be issued by the PEMRA. The argument is misconceived.
9. We have also considered the argument of the counsel for the appellant that Section 30-A has not been adopted in Azad Jammu and Kashmir. It was inserted in the PEMRA Ordinance in 2007, whereas PEMRA Ordinance was adopted in Azad Jammu and Kashmir in the year 2005, therefore, the remedy by way of appeal is not available to the appellant. According to our own estimation, the stage has not reached for the appellant to invoke the right of appeal by way of Section 30-A.
An appeal under Section 30-A lies to the High Court, in case the authority makes a decision. In the present case the authority has not made any decision yet. The application was placed before the General Manager (Licensing) PEMRA, who advised the appellant to apply under law. Any order passed by an officer of the Authority, acting under the delegated powers of the Authority, may be challenged through appeal before PEMRA within thirty days of issuance of the order under Rule 23.
' The result of above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to the costs.